Misconduct in civil litigation is not a new
phenomenon. Nor is it confined to particular types of cases. Because of their
characteristic intensity, however, intellectual property cases may be more
likely to inspire bad behavior than other types of cases. In patent cases, in
particular, often much is at stake for both counsel and client. The potential
outcomes range from a judgment for the patent owner, potentially including
trebled lost profits, a permanently enjoined infringer and even an attorney
fees award, to a ruling that the asserted patent is partly or entirely invalid,
or even unenforceable, with the patent owner ordered to pay the infringement
defendant’s attorney fees. And the complexity and potential intensity only
increase when multiple patents and/or multiple accused products are involved.
The associated pressures seem, on occasion, to lead litigants and trial lawyers
to succumb to the temptation to step outside the bounds of vigorous advocacy.

Where to draw the line can be a challenging question. And the stakes are high.
Courts have the power to impose a wide variety of sanctions on parties and
their counsel. The lawyers involved risk injury to their reputations and even,
potentially, bar discipline. Following an overview of the key sanctions regimes
available to the federal courts, this paper draws on some recent IP decisions
examining litigation conduct to illustrate the range of conduct with which
courts must contend and the application of various sanctions frameworks.